Retief v Arnu Du Preez h/a Ardu Transport

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Patel, J
• Judgment Date: 19 August 2005
• Citation: 2005 JDR 0989 (T)
• Hearing Date: 05 August 2005
• Docket Number: 11845/2005

Patel J:

[1]

On 5 August 2005 being the extended return day of a rule nisi which was issued on 3 May 2005 by my colleague Van Rooyen AJ for the provisional sequestration of the respondent's estate. The rule was initially returnable on 27 May. On which day the respondent was to file his opposing affidavit why a final order should not be made. On 25 May he served his notice to oppose the application and his answering affidavit was served on 4 July.

[2]

On the extended return day, the respondent raised a point in limine contending that the provisional order should not have been granted in the first place because there was non-compliance with the provisions of section 9(4A)(a) and (b) of the Insolvency Act 24 of 1936, as amended by the Insolvency Second Amendment Act 69 of

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Patel J

2002 and moved for the rule nisi to be discharged and the dismissal of the application with costs on a punitive scale.

[3]

Having heard argument on the preliminary issue raised the following order was made: the rule nisi was discharged and the application for the sequestration was dismissed. The issue of costs was reserved and I indicated that my judgment will follow in due course regarding this matter.

[4]

At the outset of the proceedings, Mr Klopper, for the respondent, contended that the applicant applied for the provisional order for the respondent's sequestration the former failed to comply with the provisions of section 9(4A)(a)(ii) and (iii) read with section 9(4A)(b) of the Insolvency Act, as amended, since he omitted to furnish copies of the application on the respondent's employees and the South African Revenue Service (SARS). The respondent persons as well as his mother in his business.

[5]

For present purposes, the relevant provisions of section 9(4A) stipulate that:

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Patel J

"(a)

When a petition is presented to the court, the petitioner must furnish a copy of the petition-

(i)

to every registered trade union that, as far as the petitioner can reasonable ascertain, represents any of the debtor's employees; and

(ii)

to the employees themselves-

(aa)

by affixing a copy of the petition to any notice board to which the petitioner and the employees have access inside the debtor's premises; or

(bb)

if there is no access to the premises by the petitioner and the employees, by affixing a copy of the petition to the front gate of the premises, where applicable, failing which to the front door of the premises from which the debtor conducted any business at the time of the presentation of the petition;

(iii)

to the South African Revenue Service; and

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Patel J

(iv)

...

(b)

The petitioner must, before or during the hearing, file an affidavit by the person who furnished a copy of the petition which sets out the manner in which paragraph (a) was complied with.".

[6]

There is neither an averment in the applicant's founding affidavit that immediately after the application was...